New trials ordered in double fatality

Jury instructions inadequate, court rules

Topeka  Two men convicted of murder in a 1999 crash that killed a Colorado man and a Missouri woman will receive new trials, after the Kansas Supreme Court ruled that the men did not get a fair trial.

Benjamin L. Rogers, 22, and Kenneth A. Kunellis, 19, were convicted of first-degree felony murder, burglary and theft by a Johnson County jury in 2000. Although they were tried together, the Supreme Court considered their appeals separately before issuing its ruling on Friday.

In both cases, the court found that jurors were improperly instructed about the crime of theft and that a prosecutor's explanation of those instructions also was inaccurate.

Simone Sanders, of Springfield, Mo., and Rick Sloan, of Denver, died in December 1999 when a stolen truck allegedly driven by Rogers collided with their car on U.S. Highway 69 in the Kansas City suburb of Lenexa.

Rogers, who was 18, Kunellis, who was 15, and Kunellis' brother, then 17, had used the truck to steal three motorcycles from an Olathe dealership and were trying to elude police, according to trial testimony.

Rogers allegedly drove the wrong way on the highway and collided with the car driven by Sloan as it crested a hill.

The older Kunellis suffered serious brain injuries and was never charged.

Under Kansas' felony murder law, defendants can be convicted of first-degree murder if they commit an inherently dangerous crime and someone dies during the crime or while the criminals are fleeing.

In the case of Kunellis and Rogers, prosecutors argued that the burglary and motorcycle thefts constituted the necessary crimes to support felony murder.

According to the Supreme Court decision, the error occurred when the judge gave jurors the option of finding the teens guilty of theft by "exerting unauthorized control" over property or by "obtaining unauthorized control" over property.

"Exerting unauthorized control" was improper because the phrase applies to crimes such as embezzlement, not the physical taking of property, the Supreme Court found.

That error was compounded by the prosecution's argument explaining how the crime of theft was ongoing at the time of the wreck. The defense maintained, and the Supreme Court agreed, that the crime had been completed.

Friday's opinion instructed that with new trials, jurors should receive only the "obtained" definition of theft.

Assistant Dist. Atty. Rick Guinn, who tried the case in 2000, said Friday that the decision surprised prosecutors.

"We followed the law that we understood to be the case in this state for many years," he said.

Based on Friday's decision, prosecutors will still be able to retry Kunellis and Rogers on felony murder charges. But the court said jurors must be asked to consider whether the wreck occurred during the flight from an inherently dangerous crime, not during the theft.

Guinn said prosecutors planned to ask the Supreme Court to reconsider its decision. If that is denied, he said, they intend to retry the cases.

Rogers and Kunellis are being held at the Lansing Correctional Facility and will remain behind bars. Under the life sentences they received after the 2000 convictions, they were not eligible for parole until 2019.